The Constitution of India

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The Emblem of India
The Emblem of India

The Constitution of India lays down the framework on which Indian polity is run. The Constitution declares India to be a sovereign socialist secular democratic republic, assuring its citizens of justice, equality, and liberty. It was passed by the Constituent Assembly of India on November 26, 1949, and came into effect on January 26, 1950. India celebrates January 26 each year as Republic Day. It is the longest written constitution of any independent nation in the world, containing 395 articles and 12 schedules, as well as numerous amendments, for a total of 117,369 words in the English language version. Besides the English version, there is an official Hindi translation.

The Constitution lays down the basic structure of government under which the people chose themselves to be governed. It establishes the main organs of government - the executive , the legislature and the judiciary. The Constitution not only defines the powers of each organ, but also demarcates their responsibilities. It regulates the relationship between the different organs and between the government and the people.

The Constitution is superior to all other laws of the country. Every law enacted by the government has to be in conformity with the Constitution. The Constitution spells out the Fundamental Rights, Directive Principles and Duties of citizens.

Contents

History

The Cabinet Mission

World War II in Europe came to an end on May 9, 1945. In July, a new government came to power in the United Kingdom. The new British government announced its Indian Policy and decided to convene a constitution drafting body. Three British cabinet ministers were sent to find a solution to the question of India's independence. This team of ministers was called the Cabinet Mission.

The Cabinet Mission discussed the framework of the constitution and laid down in some detail the procedure to be followed by the constitution drafting body. Elections for the 296 seats assigned to the British Indian provinces were completed by July-August 1946. With the independence of India on August 15, 1947, the Constituent Assembly became a fully sovereign body. The Assembly began work on 9 December 1947.

The Constituent Assembly

The Constituent Assembly of India was the body that framed the constitution of India. The people of India elected the members of the provincial assemblies, who in turn elected the constituent assembly. Jawaharlal Nehru, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad and Shyama Prasad Mukherjee were some important figures in the Assembly. There were more than 30 members of the scheduled classes. Frank Anthony represented the Anglo-Indian community, and the Parsis were represented by H. P. Modi and R. K. Sidhwa. The Chairman of the Minorities Committee was Harendra Coomar Mookerjee, a distinguished Christian who represented all Christians other than Anglo-Indians. Constitutional experts like Alladi Krishnaswamy Iyer, B. R. Ambedkar, B. N. Rau and K. M. Munshi Ganesh Mavlankar were also members of the Assembly. Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh and Rajkumari Amrit Kaur were important women members.

The first president of the Constituent Assembly was Sachidanand Sinha but later, Rajendra Prasad was elected president of the Constituent Assembly while B. R. Ambedkar was appointed the Chairman of the Drafting Committee. The Constituent Assembly met for 166 days, spread over a period of 2 years, 11 months and 18 days. Its sessions were open to the press and the public.

Features

The Constitution of India draws extensively from Western legal traditions in its enunciation of the principles of liberal democracy. It is distinguished from many Western constitutions, however, in its elaboration of principles reflecting aspirations to end the inequities of traditional social relations and enhance the social welfare of the population. According to constitutional scholar Granville Austin, probably no other nation's constitution "has provided so much impetus toward changing and rebuilding society for the common good." Since its enactment, the constitution has fostered a steady concentration of power in the hands of the central government - especially the Office of the Prime Minister. This centralization has occurred in the face of the increasing assertiveness of an array of ethnic and caste groups across Indian society. Increasingly, the government has responded to the resulting tensions by resorting to the formidable array of authoritarian powers provided by the Constitution. However, a new assertiveness shown by the Supreme Court and the Election Commission suggests that the remaining checks and balances among the country's political institutions are resilient and capable of supporting Indian democracy. Furthermore regional parties are gaining popularity at the expense of national parties which has led to coalition governments at the centre. As a consequence, power is becoming more decentralised.

The Constitution in its final form owes much to a number of different principles from various other Constitutions. The general structure of the Constitution's democratic framework was largely the work of B. N. Rau, a constitutional scholar of international standing. Supporters of independent India's founding father, Mohandas K. Gandhi, backed measures that would form a decentralized polity with strong local government — known as panchayat — in a system known as Panchayati Raj, i.e. rule by Panchayats. However, the view of more modernist leaders such as Jawaharlal Nehru, ultimately prevailed leading to the establishment of a parliamentary system of government and a federal system with a strong central government.

Directive Principles empower government to bring social justice by way of creating exceptions to Fundamental rights. Indian constitution is Federal in normal circumstances while unitary in Emergency. The parliament is unable to disintegrate any part from the country but can integrate into the republic, territories that have previously been separate. Accordingly Sikkim joined the union in 1972. The Parliament is also unable to levy income tax on agricultural income, but the States can. (Sapovadia 15:56, 13 November 2007 (UTC))

Features of the Indian Constitution adapted from other Sources

Upanishads

  • Just treatment for all
  • Providing equal opportunities for all
  • Positive discrimination to help the downtrodden
  • Moralistic and common sense approach towards treatment of subjects

British Constitution

  • Parliamentary form of government
  • The idea of single citizenship
  • The idea of the Rule of law
  • Institution of Speaker and his role
  • Lawmaking procedure
  • Procedure established by Law

United States Constitution

  • Charter of Fundamental Rights, which is similar to the United States Bill of Rights
  • Federal structure of government
  • Independence of the judiciary
  • President as supreme commander of armed forces
  • Equal Protection of law

Irish Constitution

  • Constitutional enunciation of the directive principles of state policy

French Constitution

  • Ideals of Liberty, Equality and Fraternity

Canadian Constitution

  • A quasi-federal form of government (a federal system with a strong central government)
  • The idea of Residual Powers

Australian Constitution

  • Freedom of trade and commerce within the country and between the states
  • Power of the national legislature to make laws for implementing treaties, even on matters outside normal Federal jurisdiction

Constitution of U.S.S.R

  • Fundamental Duties u/a 51-A
  • A Constitutionally mandated Planning Commission to oversee the development of the economy

Weimar Constitution

  • Emergency Provision u/a 356
  • Amendment of Constitution, South Africa
  • Due Procedure of Law, Japan
  • Concurrent List, Australia
  • Fundamental Duties, USSR

Unique Character of the constitution is evident in the ability of filing Writ petition u/A 32, 226 and Sp. Application u/A 136, that give powers to citizens for enforcing Fundamental Rights without any formal & complex procedure to follow. Five types of writ can be filed on a simple post card! They are the Writs of Mandamus, Certiorari, Quo Warranto, Habeas Corpus and Prohibition.

Preamble

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The preamble is not a part of the Constitution of India as it is not enforceable in a court of law. However, the Supreme Court has, in the case of Kesavananda Bharati vs. The State of Kerala, recognized that the Preamble is a part of the Constitution and may be used to interpret ambiguous areas of the Constitution where differing interpretations present themselves. However, the Preamble is useful as an interpretive tool only if there is an ambiguity in the article itself and should not be treated as a rights bestowing part of the Constitution.

An interesting side note concerns the words "SOCIALIST" and SECULAR in the preamble. The original drafting used the words "SOVEREIGN DEMOCRATIC REPUBLIC". The two additional words "SOCIALIST" and SECULAR were introduced by the controversial 42nd amendment. The amendment was pushed through by Indira Gandhi in 1976, when she had dictatorial powers. A committee under the chairmanship of Sardar Swaran Singh recommended that this amendment be enacted after being constituted to study the question of amending the constitution in the light of past experience.

The importance of the Preamble

The wording of the Preamble highlights some of the fundamental values and guiding principles on which the Constitution of India is based. The Preamble serves as a guiding light for the Constitution and judges interpret the Constitution in its light. In a majority of decisions, the Supreme Court of India has ruled that neither it nor any of its content is legally enforcible.

The first words of the Preamble - "We, the people" - signifies that power is ultimately vested in the hands of the people of India. It also tells that the constitution is made by & made for the people of India and not given to them by any outside powers.The Preamble lays down the most important national goals which every citizen and the government must try to achieve, such as socialism, secularism and national integration. Lastly, it lays down the date for the adoption of the Constitution - 26 November 1949.

Explanation of some of the important words in the Preamble

Sovereign

The word sovereign means supreme or independent. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people.

Socialist

The word socialist was added to the Preamble by the 42nd amendment act of 1976, during The Emergency (India). It implies social and economic equality. Social equality in this context means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities. Economic equality in this context means that the government will endeavor to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasizing a commitment towards the formation of a welfare state.

India has adopted a mixed economy and the government has framed many laws to achieve the aim.

Secular

The word secular was inserted into the Preamble by the 42nd amendment act of 1976, during The Emergency (India). It implies equality of all religions and religious tolerance. India, therefore does not have an official state religion. Every person has the right to preach, practice and propagate any religion they choose. The government must not favour or discriminate against any religion. It must treat all religions with equal respect. All citizens, irrespective of their religious beliefs are equal in the eyes of law. No religious instruction is imparted in government or government-aided schools[citation needed]. Nevertheless, general information about all established world religions is imparted as part of the course in Sociology, without giving any importance to any one religion or the others. The content presents the basic/fundamental information with regards to the fundamental beliefs, social values and main practices and fesitivals of each established world religions. The Supreme Court in S.R Bommai v. Union of India held that secularism was an integral part of the basic structure of the constitution.

Democratic

India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as 'One man one vote'. Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.

Republic

As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The Post of the President Of India is not hereditary. Every citizen of India is eligible to become the President of the country.

Preamble plays pivotal role when there is ambiguity in provisions of any Article or interpretation becomes confusing, spirit of preamble becomes guiding factor. Preamble is stem, root and source of constitution.

Schedules

Schedules can be added to the constitution by amendment. The twelve schedules in force cover the designations of the

  1. States and Union Territories;
  2. Emoluments for High-Level Officials;
  3. Forms of Oaths;
  4. Allocation of the number of seats in the Rajya Sabha (Council of States - the upper house of Parliament) per State or Union Territory;
  5. Provisions for the administration and control of Scheduled Areas and Scheduled Tribes (areas and tribes needing special protection due to disadvantageous conditions);
  6. Provisions for the administration of tribal areas in Assam;
  7. The Union (central government), State, and Concurrent (dual) lists of responsibilities;
  8. The Official Languages;
  9. Article 31B-Validity excluded from Court’s Review (land and tenure reforms; the association of Sikkim with India);
  10. Anti-Defection provisions for Members of Parliament and Members of the State Legislatures;
  11. Panchayat Raj (Rural Development);
  12. Municipality (Urban Planning).

Amendments

Methods of Amendment

  • By simple majority of the Parliament: Amendments in this category can be made by a simple majority of members present and voting, before sending them for the President's assent.
  • By special majority of the Parliament: Amendments can be made in this category by a two-thirds majority of the total number of members present and voting, which should not be less than half of the total membership of the house.
  • By special majority of the Parliament and ratification of at least half of the state legislatures by special majority. After this, it is sent to the President for his assent.

Basic structure of constitution can not be amended by any means. The principles of Basic Structure and liberal interpretation of Fundamental Rights are well discussed in famous cases like - Keshvanand Bharti, Maneka Gandhi, Minerava Mills, Bonded Labour, Bhopal Gas tragedy case etc. The method of amendment was borrowed from South African constitution. The constitution laid down three lists - namely; Union, State and Concurrent. The union law is powerful compared to State, but if The president has given assent to the State law, than it prevails over Union Law.

On paper, an amendment to the Constitution is an extremely difficult affair, and normally needs at least two-thirds of the Lok Sabha and Rajya Sabha to pass it. However, the Constitution is one of the most frequently amended governing documents in the world; amendments average about two a year. The document outlines governmental powers in considerable detail, meaning that amendments are required to deal with matters addressed by ordinary statute in most other democracies.

In 1974, the Supreme Court of India in the landmark case of Kesavananda Bharati vs. The State of Kerala enunciated the Basic Structure Doctrine, which expanded the scope of judicial review to include the power to review Constitutional Amendments passed by the Legislature. Using this doctrine, the Supreme Court has struck down the 39th Amendment and parts of the 42nd Amendment as being violative of the Basic Structure of the Constitution. Some noted authors of Constitutional law, such as HM Seervai, have argued that this is an usurpation of amending power by the judiciary, which was never intended by the framers of the Constitution. However, it can be argued that this doctrine is necessary to protect basic human rights from being legislated away. Amendment 44 has repelled many of 42nd amendments during Morarj Desai's Janata Party raj in 1977.

There have been a total of 94 amendments to the constitution of India, as of 2006. It has now crossed the 100 mark. One of the major amendment (74) was to reserve one third of PRI seat for women. It was a landmark amendment for affirmative actions to empower women. After 1994, more than a million women can enter politics to share power with men.

See Also





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